Indian law students are reporting for JURIST on law-related developments in and affecting India. Here Apoorv Vats, a second-year student at NALSAR University of Law, files from Hyderabad on tensions that have lately arisen between the Indian Supreme Court and the country’s central government over the process of appointing members of India’s Election Commission.  

Over the last week, the Supreme Court of India (SCI) and the government of India have been engaged in a sharp exchange of words over the manner of appointment of Election Commissioners (ECs). This issue surfaced in the context of a batch of petitions urging the SCI to ensure the independence and neutrality of the EC, as the appointment of members has been the sole prerogative of the executive. A five-judge Constitution Bench headed by Justice KM Joseph deliberated over the petitions for four days and reserved the case for judgment.

The petitions contended that the current procedure of appointment of ECs is subject to political influence, which has compromised its autonomy. Consequently, they argue that the procedure is violative of Article 14 and Article 324(2) of the Constitution of India. The petitioners urged the court to set up a collegium for appointment to ensure the independence and neutrality of the ECs.

To aggravate the issue, the Union government headed by PM Modi also came under a barrage of stinging remarks as the apex court went on to question the “tearing urgency” of Mr Arun Goel’s appointment to the Election Commission of India (ECI) at a “lightning-speed” within a matter of 24 hours particularly when the SC was examining the procedure of appointment. The issue is especially significant in light of the ongoing election process in Gujarat and Himachal Pradesh states.

The appointment of ECs is governed by Article 324(2) of the Constitution of India. It states that the Chief Election Commissioner (CEC) and the Election Commissioners shall be appointed by the President “subject to provisions of any law made in that behalf by Parliament, be made by the President.” However, no such law has been drafted by the Parliament so far.

Attorney General (AG) R Venkatramani referred to a “time-tested convention” for such appointments in response to the SC’s query over the procedure. A list of serving and retired officials serving as secretaries is compiled from the Department of Personnel & Training database. The Union Minister of Law and Justice then prepares a panel of names from this list for consideration by the Prime Minister, who then recommends one name to the President along with a note.

As is evident, the appointment procedure is entirely driven by the executive, which is the main bone of contention. The sole discretion of the executive in the appointment gives a lot of scope for foul play. The SC also pointed to the possibility of the government appointing “yes-men” to the office.

In addition, alleged instances of partiality by the ECI over the past few years have also not been helpful in this regard. In a report titled “An Enquiry into India’s Election System“, Justice Madan B Lokur flagged grave concerns over the Election Commission’s actions, more specifically, inactions in the face of model code of conduct violations, during the 2019 general elections. Further, the meeting of the CEC and ECs with the Prime Minister’s Office does not bode well for its autonomous functioning. As apprehended by Dr BR Ambedkar, there is a palpable danger of the Election Commission coming under the “thumb of the executive.”

In this regard, it is crucial to examine the judgment rendered in Rojer Mathew v South Indian Bank Ltd. The SCI ruled against the executive being the sole decision maker in appointing quasi-judicial bodies. The ECI also performs crucial quasi-judicial functions to ensure free and fair elections. Therefore, the ECI is left vulnerable to manipulation by the party at the helm and any claims of independence are mere “lip service.”

Another significant observation made by the SCI was the incredibly short durations of the tenure of ECs. Justice KM Joesph noted that since 2004, successive governments seemed to have deliberately picked people who never got to fulfil their prescribed six-year term. The UPA government saw six CECs in eight years, whereas the situation got worse under the NDA government, where eight CECs held office within a short span of seven years. In all of these instances, the CECs never got to complete their six-year tenure since they attained the age of 65 years beforehand. As per Section 4 of the Election Commission Act of 1991, the term of a CEC and ECs is six-year or till they attain the age of 65 years, whichever comes earlier.

Over the years, multiple committees and reports have suggested incorporating a collegium mechanism for appointments to the ECI. Most recently, in 2015, the 255^th Law Commission Report recommended the formation of a collegium, consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India, for the appointment of ECs. Notably, this mechanism is already followed for the appointments of the Central Vigilance Commissioner, Chief Information Officer, and the Central Bureau of Investigation Director. Back in 1975, the Justice Tarkunde Committee also made a similar recommendation which was reiterated by the Dinesh Goswami Committee in 1990. An independent multi-institutional collegium will put to rest any concerns over the possibility of the appointment of a partisan individual to the office.

Apart from the appointment procedure, several other lacunae need to be addressed. For instance, while Article 324 (5) provides for an impeachment process for the removal of the CEC, it is vague on the removal procedure for ECs. It merely provides for a recommendation of the CEC as a ground which induces a lot of scope for arbitrariness. One may argue that since the CEC and ECs have similar power, the protection from removal (except for impeachment) should be extended to the latter.

In view of the perils of having a solely executive-driven appointment process to the ECI, the Supreme Court is correct to assert the need to have an independent panel or collegium for the purpose. The Constitution of India envisaged a fiercely independent and impartial election regulatory body. Involvement of all three organs of the Parliament – legislature, judiciary, and executive in its appointments – would go a long way to ensure its transparency, autonomy and impartiality, which will further the democratic ideals of India. However, it is the Parliament that must take the lead on the issue and promulgate a law to bring in more clarity. Any coercive directions by the Supreme Court may fuel the fire and open a larger debate on the separation of powers.